COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72704 BARBARA ZUROWSKI : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION DANIEL GIANNINI, et al. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT JUNE 25, 1998 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-298328 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellant: FRED D. MIDDLETON, ESQ. 620 Leader Building 526 Superior Avenue Cleveland, Ohio 44114 For Defendants-Appellees: JAMES M. JOHNSON, ESQ. 330 Hanna Building 1422 Euclid Avenue Cleveland, Ohio 44115-1901 PATRICIA ANN BLACKMON, A.J.: Appellant Barbara Zurowski appeals a decision by the trial court in favor of appellee Daniel L. Giannini in her action for -2- personal injuries sustained in an automobile accident. Zurowski assigns the following five errors for our review: I. THE COURT COMMITTED ERROR WHEN IT DENIED THE MOTION FOR NEW TRIAL AND MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT BASED ON THE UNDISPUTED FACTS THAT THERE WAS CONCURRENT NEGLIGENCE OF JOINT TORTFEASOR, WHICH WERE A PROXIMATE CAUSE OF THE INJURY TO THE THIRD PARTY, PLAINTIFF. II. THE COURT FAILED TO INSTRUCT THE JURY THAT THE DEFENDANT WAS NEGLIGENT PER SE, WHICH IS PLAIN ERROR WHEN THE JURY INSTRUCTION WAS PLACED IN WRITING BEFORE THE COURT. III. THE COURT FAILED TO GIVE PROPER INSTRUCTIONS AS TO PROXIMATE CAUSE WHEN, IMPROPER JURY INSTRUCTION IS PLAIN ERROR. IV. IT IS ERROR TO ALLOW CROSS EXAMINATION OF A VEHICULAR PASSENGER'S ALLEGED BLOOD ALCOHOL LEVEL. V. THE COURT ERRED IN OVERRULING THE MOTION FOR NEW TRIAL SINCE THE JUDGMENT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. Barbara Zurowski sued Daniel L. Giannini for damages caused from an automobile accident. Zurowski was the passenger in her car driven by Layten Hyatt. Hyatt was driving eastbound on Euclid Heights Boulevard in Cleveland Heights when they first encountered Giannini. Both were stopped at a red light at the intersection of Euclid Heights Boulevard and Cedar Road. Giannini was to the right of Zurowski's car. Giannini asked Zurowski if she was going to get sick because she had her head hanging out of the window. Hyatt yelled at -3- Giannini to leave her alone, then drove off when the light turned green. Giannini followed behind Hyatt and Zurowski until they reached the intersection of Coventry Road and Euclid Heights Boulevard. Zurowski's car was in the thru only lane, while Giannini's car was in the left turn only lane. At the change of the light, Hyatt and Zurowski continued on Euclid Heights Boulevard. Giannini continued behind them instead of turning left. Giannini attempted to pass Hyatt and Zurowski on the left. As he tried to reenter the lane, the two cars collided. Giannini's car spun to the left and hit a tree. Zurowski's car spun to the right and also hit a tree. Zurowski suffered a nasal fracture, multiple contusions, and a fractured foot. She has had difficulty breathing and facial scarring, that has caused her emotional problems. At trial, Raymond Kasper, supervisor of the Department of Traffic Sign and Signal for the City of Cleveland Heights, testified that Euclid Heights Boulevard narrows past the intersection of Coventry Road. He said the street becomes a two- lane highway divided by double-yellow lines. He also testified that there is a do not pass sign on the left side of the street. Zurowski testified she and Hyatt were headed for Hyatt's home in Cleveland Heights when the accident occurred. She said they went to a lounge in Lakewood earlier that evening where she began to feel nauseous [sic] after drinking one beer and one shot of Schnapps. Zurowski said she asked Hyatt to drive because she did not feel well enough to drive. -4- Zurowski claimed the accident was caused by Giannini. Zurowski testified that immediately before the accident, she and Giannini were stopped at a light. Zurowski said she thought Giannini was going to turn left because he was in a left turning lane. Instead, he continued traveling behind her and Hyatt. She testified the collision occurred when Giannini tried to return to the right lane after driving along the left side of her car. On cross-examination, defense counsel questioned her about her blood alcohol level. The emergency room records indicated her level was .104. Objection by Zurowski's counsel was sustained. Giannini testified he had two passengers in his car, Lee Moorer and Bernard Brown. He was taking Moorer home, which is in Cleveland Heights. Giannini testified Moorer was giving directions to his home because Giannini was unfamiliar with that area. Giannini also testified that after he asked Zurowski if she was going to get sick, Hyatt became belligerent. Giannini claimed Hyatt yelled he was going to cap Giannini and Hyatt threw beer bottles at Giannini's car as they drove. He also said he tried to put distance between them by slowing down, but Hyatt would slow down also. Giannini said he tried to pass Hyatt because his behavior made him jittery. According to Giannini, Hyatt swerved to the right as Giannini tried to return to the correct lane in his attempt to pass Zurowski and Hyatt. After both sides presented their cases, the judge gave the jury the following instruction on proximate cause: Proximate cause is defined as an act or omission which directly causes or fails to -5- prevent a collision or an injury. It is the nearest cause not necessarily in point in time but nearest in causal connection. It may be defined as that which in the natural and continual sequence of events produced the results and without which it would not have happened. As was already stated, there is no dispute about the fact that the plaintiff was injured in the occurrence which is the subject matter of this trial. And that if the jury finds that the negligence of the defendant was a proximate cause of the collision and injury she sustained, she would be entitled to recover damages from the plaintiff (sic) in this case. After giving instructions to the jury, the trial court asked both counsel if either wished to add to, subtract from, or amend the charge given. Zurowski's counsel replied in the negative. The jury returned a verdict in Giannini's favor. This appeal followed. We will address Zurowski's second and third assigned errors first. In her second assigned error, Zurowski argues the trial court committed plain error when it failed to present to the jury her written instructions on negligence per se. The record shows at the beginning of trial, Zurowski submitted five written instructions in the form of traffic statutes: changing lanes prohibited; driving on right lanes; overtaking and passing; driving left of center line prohibited; and driving left of center in passing. Three of these regulations state if violated, the violator is negligent per se. Negligence per se by its nature removes the issue of negligence from the fact finder's consideration. See Siders v. Reynoldsburg -6- School Dist. (1994), 99 Ohio App.3d 173, 187; Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367, 374. The record also shows at the end of trial, the court did not give Zurowski's instructions. Instead, the court told the jury Giannini admitted he was negligent. Zurowski did not object to the omitted instructions and when both parties were asked if further instructions were required or, if anything, should be deleted, Zurowski responded in the negative. Civil Rule 51(A) states as follows: A party may not assign as error the giving or the failure to give any instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury. Under Civ.R. 51(A) a timely objection must be made to preserve review regardless of whether the trial court's error was one of omission or commission. Yungwirth v. McAvoy (1972), 32 Ohio St.2d 285. Ordinarily, a court will not give an instruction when evidence is lacking on that issue. Murphy v. Carrolton Mfg. Co. (1991), 61 Ohio St.3d 585. When a party objects to the failure to give an instruction to the jury, the party must set forth the grounds for the objection. Hardiman v. Zep Mfg. Co. (1984), 14 Ohio App.3d 222. However, it is true that [o]rdinarily requested instructions should be given if they are correct statements of the law applicable to the facts in the case and reasonable minds might reach the conclusions sought by the instruction. Murphy at 591, citing Markus & Palmer Trial Handbook for Ohio Lawyers (3 Ed. 1991) -7- 860, Section 36:2. Yet an objection to a jury instruction may not be assigned as error unless it is timely and specific. Hershey v. Happy Day Boating Co. (1976), 52 Ohio App.2d 95, (third paragraph of syllabus). Zurowski argues her failure to meet the timeliness-specificity rule is excused under the plain error doctrine. We disagree. The plain error doctrine is utilized in civil matters only under exceptional circumstances to prevent a manifest miscarriage of justice. Cleveland Elec.Illum. Co. v. Astorhurst Land Co. (1985), 18 Ohio St.3d 268, 275, citing Reichert v. Ingersoll (1985), 18 Ohio St.3d 220. Plain error exists when the appellant shows that but for the error she would have won. See Robb v. Lincoln Publishing (Ohio), Inc.(1996), 114 Ohio App.3d 595, 621. On this record this cannot be said. The sole issue before the trial court was proximate cause and on that issue the jury believed Giannini. His negligence became a non-issue when he admitted that he was negligent. Once he admitted negligence the question for the jury was whether he proximately caused the accident. From their verdict, they obviously believed Hyatt caused the accident. Having failed the plain error but for test, we conclude Zurowski's second assigned error is overruled. Zurowski's third assigned error is also overruled. Zurowski argues the trial court should have instructed the jury on dual proximate cause. Here, too, Zurowski failed to object and did not move for a dual causation instruction. She argues but for the -8- error the verdict would have been different. Consequently, the issue for us is whether the facts of the case established dual proximate cause or whether Zurowski's driver was the sole cause of the accident. Zurowski argues but for Gianini's negligence the accident would not have happened. It is no doubt that Giannini set a force in motion and was a danger to the traffic that day. Zurowski argues Giannini moved left of center and did not clear the area before returning to the lane. She argues he collided with them. Based on these facts a single act of proximate cause existed and the jury was left with believing Giannini or Zurowski. They chose Giannini, and logic suggests why. In order for Zurowski's car to be parallel to Giannini's car at the time of improper passing, Hyatt had to speed up. It appears that he was attempting to block Giannini from returning to the right lane. Although Giannini was wrong in trying to pass, the jury believed that Hyatt was the one who bumped Giannini and caused the accident. The jury had to conclude Giannini's act was made totally irrelevant by Hyatt's driver's act. Consequently the trial court was not required to instruct on dual proximate cause. Murphy at 591. In Murphy, the court held our job is to review the record and determine whether the record contains evidence from which reasonable minds might reach the conclusion sought by a dual instruction on proximate cause. In response to Murphy's inquiry, we cannot conclude evidence of dual proximate cause existed; therefore, the plain error doctrine is inapplicable. Likewise, Zurowski's third assigned error is overruled. -9- In her first assignment of error, Zurowski argues the court erred when it denied her motions for new trial and for judgment notwithstanding the verdict. She argues the evidence presented at trial supported a finding of concurrent negligence which was not considered by the court. Granting a motion for new trial rests in the sound discretion of the trial court; that court's ruling will not be disturbed on appellate review unless there is an abuse of discretion. Verbon v. Pennese, et al. (1982), 7 Ohio App.3d 182, (third paragraph of syllabus). A motion for judgment notwithstanding the verdict should be granted when the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party. Civ.R. 50(A)(4). After reviewing the record, we conclude the trial court properly denied both motions. The determining issue before the court was whether the verdict was supported by substantial evidence. The evidence was conflicting as to who caused the accident. However, Giannini testified he was afraid because of Hyatt's belligerent behavior. He said Hyatt threw beer bottles at his car. He also said that he tried to put distance between them by slowing down, but Hyatt would slow down also. Giannini said he was only trying to get away from Hyatt when the accident happened. -10- Construing this evidence in favor of Giannini, reasonable minds could conclude Giannini did not proximately cause Zurowski's injuries. Thus, the trial court did not abuse its discretion as the evidence substantially supports the verdict. Verbon, supra. Zurowski's first assignment of error is overruled. In her fifth assignment of error, Zurowski argues the trial court erroneously denied her motion for a new trial because the verdict was against the manifest weight of the evidence. This argument is moot due to our decision on her first assignment of error. In her fourth assignment of error, Zurowski argues the trial court erroneously overruled her objection to cross-examination questioning concerning her blood alcohol level pursuant to Evid.R. 403(A). She argues the prejudicial effect of such questioning outweighed its probative value. The disputed testimony follows: Q. Were you aware that the blood alcohol test that was taken on you at the hospital indicated that your blood alcohol at that point - - Mr. Middleton: Objection. Q. - - was still .104; were you aware of that? A. No. Q. Are you saying that you got that from one beer and one glass of Schnapps two and a half hours earlier? A. Yes. Q. Do you think that's possible, ma'am? Mr. Middleton: Objection. The Court: Sustained. Does she think it's possible? She just testified to it. -11- Q. You are saying that you had at 4:16 a.m. a .104 blood alcohol level - - The Court: I didn't hear her say that (sic) you said that, it (sic) she didn't say that. What's the question now of this witness? *** (Tr. 131-132.) Our review of the record reveals that the trial court did, in fact, sustain Zurowski's objection. Therefore, this assignment of error is meritless. Judgment affirmed. herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. JOSEPH J. NAHRA, J., and MICHAEL J. CORRIGAN, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .